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04/21/97 PEOPLE STATE ILLINOIS v. TAMMY DONESKI

April 21, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
TAMMY DONESKI, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable THOMAS DWYER, Judge Presiding.

Released for Publication June 2, 1997.

The Honorable Justice Buckley delivered the opinion of the court. O'brien and Gallagher, JJ., concur.

The opinion of the court was delivered by: Buckley

JUSTICE BUCKLEY delivered the opinion of the court:

Following a bench trial, defendant, Tammy Doneski, was convicted of two counts of violating the Illinois Medical Practice Act, 225 ILCS 60/49 (West 1992), for (1) representing herself to the public as being engaged in the practice of medicine, and (2) attaching the title of doctor or M.D. to her name indicating that she is engaged in the medical profession as a business. She was found to have engaged in these practices during the period of February through November 1993. Defendant appeals, raising the following issues: (1) whether count IV of the indictment properly charged the offense since it did not specify when or to whom defendant allegedly held herself out as being engaged in the practice of medicine; (2) whether the evidence failed to establish that defendant held herself out as engaged in the practice of medicine, but rather established that she was an administrator and admittedly not a licensed or practicing physician; (3) whether the evidence established that defendant affixed the initials M.D. after her name on cards or stationery; and (4) whether defendant was unfairly surprised and deprived of the opportunity to confront witnesses when the court admitted into evidence letters first produced on the morning of trial with all but defendant's signature and the date redacted.

Defendant was indicted on five counts for committing the offense of "persons without license holding themselves out to the public as being engaged in diagnosis or treatment ailments of human beings" in violation of the Illinois Medical Practice Act, 225 ILCS 60/49 (West 1992). A bench trial was held on counts IV and V of the indictment, alleging respectively, that defendant "told personnel at the Center For Human Reproduction that she was a medical doctor," and that defendant "possessed, distributed and allowed to be distributed business cards and stationery with her name and the initials M.D. after it."

Before trial, defendant moved to dismiss the indictment for failure to state an offense and to dismiss count IV specifically on the ground that it was insufficient for purposes of double jeopardy. The court denied both motions. After a two-day bench trial, defendant was convicted of both counts on November 30, 1994. After hearing all factors in aggravation and mitigation, the trial court sentenced defendant to 18 months probation, a $1,000 fine, 20 days of community service and court costs.

The following evidence was presented during trial. The Center For Human Reproduction (the Center) is an ob/gyn practice specializing in infertility. A new position had been created at the Center to handle patient complaints and to compile the Center's statistical results of various infertility treatments. In February or March 1993, Donna Havemann, the Center's executive vice president, placed an ad in the Chicago Tribune to seek candidates for a quality assurance and research coordinator with "experience in data processing and statistics." The ad indicated that applicants should have a master's degree in public health, or an equivalent degree; a medical degree, medical license, or Ph.D. was not required.

Defendant answered the ad with a resume indicating that she was a candidate in the combined M.D./Ph.D. program at the University of Chicago, and that she had received a bachelor of science degree at the University of Chicago in 1988. An enclosed cover letter stated that she was "in the process of completing [her] doctoral thesis research" and had "indefinitely postponed entering a medical residency program at this juncture" so that she may "pursue other options within the healthcare industry." In fact, defendant had not received a bachelor's degree from the University of Chicago or any other university and she was never enrolled in a M.D./Ph.D. combined program.

Defendant interviewed with the medical director of the Center, Dr. Norbert Gleicher. He offered defendant the position, which she accepted. While Dr. Gleicher admitted that defendant never indicated that she was licensed to practice medicine in the State of Illinois, he was under the impression that she had completed the M.D./Ph.D. program at the University of Chicago.

After hiring defendant, Dr. Gleicher instructed Donna Havemann to have defendant's name put on the letterhead and on business cards followed by the designation "M.D./Ph.D." and the title "Director of Quality Assurance and Data Management." Defendant's name tag, worn on her lab coat at the clinic, bore the same initials and title.

Dr. Gleicher testified that he introduced defendant to staff members as "Dr. Doneski" and she never corrected him. Dr. Gleicher also introduced her externally as "Dr. Doneski" and heard the other staff members refer to defendant as "Dr. Doneski." In the Center's brochures and inserts, defendant was introduced as a graduate of the M.D./Ph.D. program of the University of Chicago. The State's other witnesses, Benetta Herman and Douglas Rabin, staff members at the Center, also testified that defendant was referred to and introduced as "Dr. Doneski." Ms. Herman stated that on one occasion, she had called defendant "Tammy." Defendant instructed Ms. Herman to call her "Dr. Doneski" rather than "Tammy." Donna Havemann also testified that she recognized defendant's signature as "Dr. Doneski" on an "on-call schedule."

On cross-examination, Dr. Gleicher testified that defendant was not hired as a physician, was not to function as a practicing physician, and was not on the Center's malpractice policy as a physician. He stated that no one could make an appointment to see defendant for patient care, and admitted that defendant's title was put on her name tag to identify her function as director of quality assurance. According to Dr. Gleicher, defendant had never treated a patient during her employment at the Center.

Defendant's responsibilities at the Center included taking and writing up patients' complaints, analyzing patient questionnaires, and reporting the outcome to Dr. Gleicher. Dr. Gleicher reviewed and revised defendant's work. Defendant did not offer to treat or suggest any treatment in her written work. Defendant was also given a pager and was made available for after-hours calls from patients seeking their test results. These were all non-medical staff functions, requiring neither a Ph.D. or M.D.

Prior to hiring defendant, Dr. Gleicher did not ask to see defendant's diplomas. In the fall of 1993, he received a visit from two investigators from the department which licenses physicians and other healthcare professionals. He provided them with printed materials which showed that defendant was not employed as a practicing physician. Approximately one week later, Dr. Gleicher received notification from the University of Chicago that ...


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